Scott v. Scott

----ooOoo----

Lorri Naegle Scott,
Plaintiff and Appellee,

v.

Russell Scott,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010550-CA

F I L E D
April 25, 2002 2002 UT App 132 -----

Third District, Murray Department
The Honorable Joseph C. Fratto Jr.

Attorneys:
Russell-Emanuel Scott, South Jordan, Appellant Pro Se
Dennis L. Mangum and Richard S. Nemelka, Salt Lake City, for Appellee -----

Before Judges Jackson, Bench, and Orme.

PER CURIAM:

This case is before the court on a sua sponte motion for summary disposition. Appellant Russell Scott filed two notices of appeal from interlocutory orders in the divorce proceeding. On June 13, 2001, Russell filed a notice of appeal from the temporary custody order and a judgment of $1758.32 for child support. On June 28, 2001, Russell filed a notice of appeal from decisions resulting from the motion hearing and pretrial hearing held on June 27, 2001.

The trial court entered a Temporary Order on Order to Show Cause on April 26, 2001, that granted temporary child custody to Appellee Lorri Naegle Scott. The unsigned minutes for a May 30, 2001 hearing on an order to show cause state that the court found Russell in contempt and granted judgment to Lorri in the amount of $1758.32 for child support. These orders are the subject of our Case No. 20010550-CA. The second notice of appeal, which initiated our Case No. 20010650-CA, cannot be tied to any subsequent written order of the court; however, the unsigned minutes from the pretrial conference state that a motion to set aside the temporary orders was denied and a ruling on all other motions was deferred until trial. We previously issued an unpublished memorandum decision dismissing Case No. 20010650-CA. See Scott v. Scott, 2001 UT App 344 (per curiam).

Despite the confusion created by the two notices of appeal filed in this case, the reasoning of our prior memorandum decision in Case No. 20010650-CA is equally dispositive of Case No. 20010550-CA. Both appeals challenge interlocutory orders that are appealable only through a discretionary appeal under Rule 5 of the Utah Rules of Appellate Procedure or in an appeal from the final judgment entered at the conclusion of the case. Russell does not dispute that the orders he seeks to appeal are interlocutory; however, he requests this court to consider his appeals as discretionary interlocutory appeals.

The requirements for obtaining permission to appeal an interlocutory order are specific and may not be modified or suspended by this court. See Utah R. App. P. 2. Those requirements include filing a timely petition for permission to appeal in the appropriate appellate court. Russell did not file a petition in this court within the time allowed by rule 5; therefore, we deny the request to treat this appeal as an interlocutory appeal. In addition, insofar as this appeal seeks to challenge the finding of contempt for failure to pay child support, the order was not appealable because (1) it was never reduced to a signed written order, and (2) even if reduced to a written order, it is a civil contempt order intended only to recover the arrearage and is not immediately appealable. See Von Hake v. Thomas, 759 P.2d 1162, 1167 (Utah 1988)(stating criminal contempt order is final and appealable as a matter of right and civil contempt order is interlocutory and not appealable as a matter of right).

Accordingly, we dismiss the appeal for lack of jurisdiction because it is not taken from any final appealable order.
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Gregory K. Orme, Judge